Exhibit 4.7
ESCROW AND SECURITY AGREEMENT
This ESCROW AND SECURITY AGREEMENT (this "Escrow Agreement") is made and
entered into as of May __, 1998 among CELLNET FUNDING, LLC, a Delaware limited
liability company (the "Issuer"), CELLNET DATA SYSTEMS, INC. ("CellNet"), a
Delaware corporation, and THE BANK OF NEW YORK, a New York banking corporation
as escrow agent (the "Escrow Agent") for the holders (the "Holders") of the
Preferred Securities (as defined herein) issued by the Issuer under the LLC
Agreement referred to below.
W I T N E S S E T H
WHEREAS, pursuant to the Underwriting Agreement (the "Underwriting
Agreement") dated May __, 1998, among the Issuer, CellNet and Xxxxxx Xxxxxxx
& Co. Incorporated (the "Underwriter"), the Issuer and CellNet have agreed to
sell to the Underwriter, 4,400,000 of Issuer's 7% Exchangeable Limited
Liability Company Preferred Securities, liquidation preference $25 per
preferred security (the "Firm Preferred Securities" and, together with the
Additional Preferred Securities (as defined herein), the "Preferred
Securities"), which will be mandatorily redeemable on June 1, 2010;
WHEREAS, pursuant to the Underwriting Agreement, the Issuer and CellNet
propose to issue and sell to the Underwriter not more than an additional
660,000 Preferred Securities (the "Additional Preferred Securities"), if and
to the extent that the Underwriter shall have determined to exercise the
right to purchase such additional Preferred Securities granted to the
Underwriter;
WHEREAS, the Issuer hereby agrees to (i) purchase or cause the purchase
of Pledged Securities (as defined herein) in an amount anticipated to be
sufficient upon receipt of scheduled interest and principal payments in
respect thereof to provide for the payment in cash of the dividends on the
Preferred Securities, payable quarterly in arrears on each March 1 and June
1, September 1 and December 1, commencing September 1, 1998 through and
including September 1, 2001 and (ii) deposit such Pledged Securities (as
defined herein) (or cause them to be so deposited in a securities) in an
account held by the Escrow Agent for the benefit of holders of the Preferred
Securities;
WHEREAS, to secure its obligations to the holders of the Preferred
Securities under the LLC Agreement (as defined herein) and the Preferred
Securities Designation (as defined in the LLC Agreement) and its obligations
to the holders of the Preferred Securities and the Escrow Agent hereunder
(collectively, the "Obligations"), the Issuer has agreed (i) to pledge to the
Escrow Agent for its benefit and the ratable benefit of the Holders of the
Preferred Securities, a security interest in the Pledged Securities (as
defined herein) and related collateral and (ii) execute and deliver this
Escrow Agreement in order to secure the payment and performance by the Issuer
of all the Obligations. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings given to such terms in the
Amended and Restated of Limited Liability Company Agreement of the Issuer
dated as of May __, 1998 (as amended, restated, supplemented or otherwise
modified from time to time, the "LLC Agreement") or, if not therein defined,
in the Preferred Securities Designation. Unless otherwise defined herein or
in the LLC Agreement, terms used in Articles 8 or 9 of the Uniform Commercial
Code as enacted and in effect in the State of New York from time to time (the
"UCC") are used herein as therein respectively defined on the date hereof; and
WHEREAS, it is a condition precedent to the purchase of the Preferred
Securities by the Holders thereof that the Issuer shall have granted the
security interest and made the pledge contemplated by this Escrow Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and in order to induce the Holders of the Preferred Securities to purchase the
Preferred Securities and as a condition to the Closing of the offering of the
Preferred Securities, the Issuer hereby agrees with the Escrow Agent, for the
benefit of the Escrow Agent and for the ratable benefit of the Holders of the
Preferred Securities, as follows:
SECTION 1. PLEDGE AND GRANT OF SECURITY INTEREST.
The Issuer hereby pledges to the Escrow Agent for its benefit and for
the ratable benefit of the Holders of the Preferred Securities, and hereby
grants to the Escrow Agent for its benefit and for the ratable benefit of the
Holders of the Preferred Securities, a continuing security interest in and to
all of the Issuer's right, title and interest in, to and under the following
(hereinafter collectively referred to as the "Collateral"), whether now owned
or hereafter acquired or arising, whether evidenced by or characterized as
investment property, general intangibles, documents, instruments, accounts,
money or otherwise: (a) the United States Treasury securities identified in
Annex 1 to Exhibit A to this Escrow Agreement (the "Firm Pledged Securities"
and, together with the Additional Pledged Securities, the "Pledged
Securities"), (b) the United States Treasury securities, if any, to be
purchased pursuant to Section 7(c) any and all applicable security
entitlements to the Pledged Securities, (d) all dividends, interest, cash,
instruments and other property from time to time received, receivable or
otherwise distributed or distributable in respect of or in exchange for the
Pledged Securities, (e) The Bank of New York account in the name of "The Bank
of New York, as Escrow Agent for the benefit of the holders of the -%
Exchangeable Limited Liability Company Preferred Securities mandatorily
redeemable 2010 of CellNet Funding, LLC Collateral Escrow Account",
Administrative Account No. - (the "Escrow Account") established and
maintained by the Escrow Agent pursuant to this Escrow Agreement, (f) all
dividends, interest, cash, investments and other property of any kind from
time to time deposited in, received, receivable or otherwise distributed or
distributable in respect of or in exchange for the Escrow Account and any
credit balance maintained therein, (g) any and all related securities
accounts maintained with any securities intermediary in which security
entitlements to the Pledged Securities or any related investment property are
carried, and (h) all proceeds in any form of any and all of the foregoing
Collateral (including, without limitation, proceeds that constitute property
of the types described in clauses (a) - (h) of this Section 1) and, to the
extent not otherwise included, all cash.
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in such amount as will be sufficient upon receipt of scheduled interest
and/or principal payments of all Pledged Securities thereafter held in the
Pledged Account to provide payment for the first thirteen cash dividends due
on the Preferred Securities. The Additional Pledged Securities shall be
pledged by the Issuer to the Escrow Agent for the benefit of the Holders and
shall be held by the Escrow Agent in the Pledged Account.
SECTION 2. SECURITY FOR OBLIGATION. This Escrow Agreement and the
pledge of Collateral hereunder secures the prompt and complete payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of all the Obligations. Without limiting the generality of the foregoing,
this Escrow Agreement and the grant of a security interest in the Collateral
hereunder secures the payment of all amounts that constitute part of the
Obligations and would be owed by the Issuer to the Holders of the Pledged
Securities under the Underwriting Agreement but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Issuer.
SECTION 3. DELIVERY OF COLLATERAL; ESCROW ACCOUNT; INTEREST. From
and after the date of this Escrow Agreement until the earliest to occur of
payment in full of the Obligations, payment in full in cash of all dividends
accruing through August 1, 2001, an Automatic Exchange or the exchange of all
of the Preferred Securities for CellNet Common Stock.
(a) Prior to or concurrently with the execution and delivery hereof
and prior to the transfer to the Escrow Agent of the Pledged Securities (or
acquisition by the Escrow Agent of any security entitlement thereto), as
provided in subsection (a) of this Section 3, the Escrow Agent shall establish
the Escrow Account on its books as an account segregated from all other
custodial or collateral accounts at its office at - Attention: -.
(b) All certificates or instruments representing or evidencing the
Pledged Securities or the Escrow Account shall be delivered to and held by or
on behalf of the Escrow Agent pursuant hereto and shall be in suitable form
for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Escrow Agent. The Escrow Agent shall have the right,
at any time in its discretion and without notice to the Issuer, to transfer
to or to register in the name of the Escrow Agent or any of its nominees any or
all of the Collateral.
(c) The Pledged Securities shall be pledged and transferred to the
Escrow Agent as securities intermediary to be held in the Escrow Account.
Upon transfer of the Pledged Securities to the Escrow Agent (or the Escrow
Agent's acquisition of a security entitlement thereto), the Escrow Agent
shall make appropriate book entries indicating that the Pledged Securities
and/or such security entitlement have been credited to and are held in the
Escrow Account. The Escrow Agent shall deliver a notice to the Issuer and
the Underwriter indicating that (i) the Pledged Securities or a security
entitlement thereto has been credited to the Escrow Account by book entry, or
(ii) the Pledged Securities or a security entitlement thereto have been
pledged to and accepted by the Escrow Agent for credit to the Escrow Account.
Subject to the other terms and conditions of this Escrow Agreement, all
funds or other property held by the Escrow Agent pursuant to this Escrow
Agreement shall be held in the Escrow Account subject (except as expressly
provided in Sections 4(a), (b) and (c) hereof) to the exclusive dominion and
control of the Escrow Agent and exclusively for the benefit of the Escrow
Agent and for the ratable benefit of the Holders of the Preferred Securities
and segregated from all other funds or other property otherwise held by the
Escrow Agent. No Person other than the Escrow Agent shall be authorized to
issue entitlement orders with respect to the Pledged Securities and the
Issuer hereby directs the Escrow Agent not to comply with any entitlement
orders issued by any Person except pursuant to the terms hereof.
(d) All Collateral shall be retained in the Escrow Account pending
disbursement pursuant to the terms hereof.
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(e) Except as otherwise expressly provided hereby and
notwithstanding any term or condition to the contrary in any other existing
or future agreement relating to the Escrow Account, no Collateral deposited
in the Escrow Account shall be released from the Escrow Account, nor paid to
or for the account of, or withdrawn by or at the direction of, the Issuer or
any other Person.
(f) Concurrently with the execution and delivery of this Escrow
Agreement the Escrow Agent is delivering to the Issuer and the Underwriter a
duly executed control agreement, in the form of Exhibit A hereto, of an
officer of the Escrow Agent, confirming the Escrow Agent's establishment and
maintenance of the Escrow Account and its receipt and holding of the Firm
Pledged Securities or a security entitlement thereto and the crediting of the
Firm Pledged Securities or such security entitlement to the Escrow Account,
all in accordance with this Escrow Agreement.
(g) In the event the Underwriter shall decide to exercise the
right to purchase the Additional Preferred Securities pursuant to the
Underwriting Agreement, the Escrow Agent shall deliver, on the date of
issuance of the Additional Preferred Securities, to the Issuer and the
Underwriter a duly executed certificate, substantially in the form of
Exhibit A hereto, with respect to the Additional Pledged Securities, of an
officer of the Escrow Agent, confirming the Escrow Agent's maintenance of the
Escrow Account and its receipt and holding of the Additional Pledged
Securities or a security entitlement thereto and the crediting of the
Additional Pledged Securities or such security entitlement to the Escrow
Account, all in accordance with this Escrow Agreement.
(h) As soon as available from the appropriate filing offices after
the execution and delivery of this Escrow Agreement, the Issuer shall deliver
to the Escrow Agent acknowledgment copies or stamped receipt copies of proper
financing statements, duly filed on or before the Closing Date (as defined in
the LLC Agreement) with the filing offices respectively designated by the UCC
for the State of New York and the Uniform Commercial Code as enacted and in
effect in the State of California on the Closing Date for the State of
California, covering the Collateral described in this Escrow Agreement.
SECTION 4. DISBURSEMENTS.
(a) The Issuer hereby agrees that, on the date of each of the
first thirteen scheduled dividend payments on the Preferred Securities, the
Escrow Agent shall release from the Escrow Account and pay to the Holders of
the Preferred Securities funds sufficient to provide for payment in full of
such dividend payment then due on the Preferred Securities. The Escrow Agent
will release such funds on each such date funds in accordance with the terms
hereof and the payment provisions of the LLC Agreement to the Holders of the
Preferred Securities from (and to the extent of) proceeds of the Pledged
Securities in the Escrow Account. To the extent that a Class of Pledged
Securities (as defined below) is scheduled to mature on or about a dividend
payment date, the Escrow Agent shall make the dividend payment from such
Class of
(b) If the Issuer delivers to the Escrow Agent, prior to August 1,
2001, immediately available funds from any source other than the Escrow
Account ("Issuer Funds"), to make any dividend payment or portion of a
dividend payment, the Escrow Agent shall pay over to the Issuer or the
Issuer's designee, as the case may be, from the property in the Escrow
Account an amount less than or equal to the amount of Issuer Funds applied to
such dividend payment (or such lesser amount as the Escrow Agent may obtain
by liquidating Collateral to approximate the amount so applied) as soon as
practicable.
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(c) Upon (i) payment in full of the first thirteen scheduled
dividend payments on the Preferred Securities or (ii) exchange of all of the
Preferred Securities into shares of CellNet Common Stock, the security
interest in the Collateral granted pursuant to this Escrow Agreement will
automatically terminate and be of no further force and effect and the Escrow
Agent shall promptly release, pay over and transfer the remaining Collateral
to the Issuer or as the Issuer may direct; PROVIDED, that, in the case of an
exchange, the Escrow Agent shall not release any Class of Pledged Securities
(as defined below) which has a scheduled maturity within 15 days after the
date of release. Furthermore, upon the release of any Collateral from the
Escrow Account in accordance with the terms of this Escrow Agreement, whether
upon release of Collateral to Holders as payment of dividends or otherwise,
the security interest evidenced by this Escrow Agreement in such released
Collateral will automatically terminate and be of no further force and
effect. The Escrow Agent will take all steps reasonably requested by CellNet
or Funding to evidence any such release of record.
(d) At least six Business Days prior to the due date of each of the
first thirteen scheduled dividend payments on the Preferred Securities, the
Issuer shall give the Escrow Agent written notice whether such dividend payment
will be made pursuant to Section 4(a) or 4(b) and the respective amounts of the
dividend that will be paid from the Escrow Account and from Issuer Funds. Any
Issuer Funds to be used to make any dividend payment shall be delivered to the
Escrow Agent, in immediately available funds, prior to 10 a.m. one business day
prior to such dividend payment date. If no such notice is given or such Issuer
Funds have not been so delivered, the Escrow Agent will make the scheduled
dividend payment by releasing the appropriate amount from the property then
on deposit in the Escrow Account.
(e) Upon any Automatic Exchange, the Escrow Agent, pursuant to a
written notice given by the Issuer to the Escrow Agent, shall release from
the Escrow Account and pay the Holders whose Preferred Securities are being
automatically exchanged for shares of CellNet Common Stock pursuant to such
Automatic Exchange, such Holders' pro rata share of the entire Collateral, as
calculated by the Issuer and set forth in the Issuer's notice.
(f) The Issuer hereby authorizes the Escrow Agent to liquidate
Collateral in the Escrow Account (pursuant to written instructions from
Issuer) in order to make any scheduled payment of dividends or payment
pursuant to Section 4(e) above unless there are sufficient funds in the
Escrow Account on such dividend payment date.
(g) In the event that, prior to August 1, 2001, a holder of the
Preferred Securities exchanges such Preferred Securities with the Issuer for
shares of CellNet Common Stock in accordance with the LLC Agreement, the
Escrow Agent, upon receipt of a written notice thereof from the Issuer, shall
release and pay to CellNet from the Escrow Account an amount of each Class of
Pledged Securities (other than the Class of Pledged Securities, if any, that
will mature within 15 days from the date of such exchange) that are then held
in the Escrow Account equal to all of the Pledged Securities in such Class of
Pledged Securities multiplied by a fraction, the numerator of which is the
number of Preferred Securities which are being exchanged and the denominator
of which is all of the outstanding
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Preferred Securities, as calculated by the Issuer and set forth in the
Issuer's notice; provided however, that the Escrow Agent shall only release
each such Class of Pledged Securities to the extent that it receives from an
officer of the Issuer a written notice stating that it is such officer's
reasonable opinion that after such release, the Pledged Securities remaining
in the Escrow Account will be sufficient upon receipt of scheduled interest
and/or principal payment of all remaining Pledged Securities thereafter held
in the Pledged Account to provide payment for the remaining cash dividends
due on the Preferred Securities. Each group of Pledged Securities that has a
scheduled maturity on or about a dividend payment date with respect to the
Preferred Securities shall be considered, for purposes of this Section 4, a
"Class of Pledged Securities".
(h) Nothing contained in this Escrow Agreement shall (i) afford the
Issuer any right to issue entitlement orders with respect to any security
entitlement to the Pledged Securities or any securities account in which any
such security entitlement may be carried, or otherwise afford the Issuer control
of any such security entitlement or (ii) otherwise give rise to any rights of
the Issuer with respect to the Pledged Securities, any security entitlement
thereto or any securities account in which any such security entitlement may be
carried, other than the Issuer's rights under this Escrow Agreement as the
beneficial owner of Collateral pledged to and subject to the exclusive dominion
and control of the Escrow Agent in its capacity as such.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Issuer hereby
represents and warrants that:
(a) The execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, this Escrow Agreement
will not contravene any provision of applicable law or the Certificate of
Formation of the Issuer or any material agreement or other material
instrument binding upon the Issuer or any of its subsidiaries or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Issuer or any of its subsidiaries, or result in the
creation or imposition of any lien on any assets of the Issuer, except for
the security interests granted under this Escrow Agreement; no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required (i) for the execution, delivery or performance by
the Issuer of its obligations under this Escrow Agreement, (ii) for the grant
by the Issuer of the security interest created hereby or for the pledge by
the Issuer of the Collateral pursuant to this Escrow Agreement or (iii)
except for any such consents, approvals, authorizations or orders required to
be obtained by the Escrow Agent (or the Holders) for reasons other than the
consummation of this transaction, for the exercise by the Escrow Agent of the
rights provided for in this Escrow Agreement or the remedies in respect of
the Collateral pursuant to this Escrow Agreement.
(b) The Issuer is the beneficial owner of the Collateral, free and
clear of any Lien or claims of any person or entity (except for the security
interests granted under this Escrow
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Agreement). No financing statement covering the Issuer's interest in the
Pledged Securities is on file in any public office, other than the financing
statements filed pursuant to this Escrow Agreement. The Issuer has no trade
names.
(c) This Escrow Agreement has been duly authorized, validly
executed and delivered by the Issuer and constitutes a valid and binding
agreement of the Issuer, enforceable against the Issuer in accordance with
its terms, except as the enforceability hereof may be limited by
(i) bankruptcy, insolvency, fraudulent conveyance, preference,
reorganization, moratorium or similar laws now or hereafter in effect
relating to or affecting creditors' rights or remedies generally, (ii) the
applicability of equitable principles, whether in a proceeding in equity or
at law, (iii) the exculpation provisions and rights to indemnification
hereunder may be limited by U.S. federal and state securities laws and public
policy considerations and (iv) the waiver of rights and defenses contained in
Section 11(b) and Section 14.11 hereof may be limited by applicable law.
(d) Upon the transfer to the Escrow Agent of the Pledged
Securities and the acquisition by the Escrow Agent of a security entitlement
thereto and control thereover, in accordance with Section 3, the pledge of
and grant of a security interest in the Collateral securing the payment of
the Obligations for the benefit of the Escrow Agent and the Holders of the
Preferred Securities will constitute a perfected security interest in such
Collateral with first priority against all creditors of the Issuer (and any
persons purporting to purchase any of the Collateral from the Issuer) except
as the enforceability thereof may be limited by (i) bankruptcy, insolvency,
fraudulent conveyance, preference, reorganization, moratorium or similar laws
now or hereafter in effect relating to or affecting creditors' rights or
remedies generally and (ii) the applicability of equitable principles,
whether in a proceeding in equity or at law.
(e) There are no legal or governmental proceedings pending or, to
the best of the Issuer's knowledge, threatened to which the Issuer or any of
its subsidiaries is a party or to which any of the properties of the Issuer
or any such subsidiary is subject that would materially adversely affect the
power or ability of the Issuer to perform its obligations under this Escrow
Agreement or to consummate the transactions contemplated hereby.
(f) The pledge of the Collateral pursuant to this Escrow Agreement
is not prohibited by law or governmental regulation (including, without
limitation, Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System) applicable to the Issuer.
(g) No Event of Default (as defined below) exists.
SECTION 6. FURTHER ASSURANCES. The Issuer will, promptly upon
request by the Escrow Agent or as reasonably necessary to effectuate the
purposes hereof, at the Issuer's expense, execute and deliver or cause to be
executed and delivered, or use its reasonable best efforts to procure, all
assignments, instruments and other documents, all in form and substance
reasonably satisfactory to the Escrow Agent, deliver possession of all
instruments and deliver (within the meaning of UCC Section 8-301) all
securities (certificated and uncertificated), together with effective
endorsements or instruments of transfer duly executed in blank to the Escrow
Agent and take any other actions that are necessary or desirable to perfect,
continue the perfection of, or protect the first priority of the Escrow
Agent's security interest in and to the Collateral, to protect the Collateral
against the rights, claims, or interests of third persons (other than any
such rights, claims or interests created by or arising through the Escrow
Agent) or to effect the purposes of this Escrow Agreement.
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Without limiting the generality of the foregoing, the Issuer will: (i)
if any Collateral shall be evidenced by a promissory note or other
instrument, deliver and pledge to the Escrow Agent hereunder such note or
instrument duly endorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to the Escrow
Agent; and (ii) execute and file such financing or continuation statements or
amendments thereto, and such other instruments or notices, as may be
necessary or desirable in order to perfect and preserve the pledge,
assignment and security interest granted or purported to be granted hereby.
A photocopy or other reproduction of this Escrow Agreement or any financing
statement covering the Collateral or any part thereof shall be sufficient as
a financing statement where permitted by law. The Issuer will furnish to the
Escrow Agent from time to time statements and schedules further identifying
and describing the Collateral and such other reports in connection with the
Collateral as the Escrow Agent may reasonably request, all in reasonable
detail. The Issuer will promptly pay all reasonable costs incurred in
connection with any of the foregoing within 60 days of receipt of an invoice
therefor. The Issuer also agrees to take all actions that are necessary to
perfect or continue the perfection of, or to protect the first priority of,
the Escrow Agent's security interest in and to the Collateral, including the
filing of all necessary financing and continuation statements, and to protect
the Collateral against the rights, claims or interests of third persons
(other than any such rights, claims or interests created by or arising
through the Escrow Agent).
SECTION 7. COVENANTS. The Issuer covenants and agrees with the
Escrow Agent for the benefit of the Escrow Agent and the Holders of the
Preferred Securities that from and after the date of this Escrow Agreement
until the earliest to occur of payment in full of the Obligations, payment in
full in cash of all dividends accruing through August 1, 2001, an Automatic
Exchange or the exchange of the Preferred Securities for CellNet Common
Stock:
(a) that (i) it will not (and will not purport to) sell or
otherwise dispose of, or grant any option or warrant with respect to, or any
right to initiate entitlement orders with respect to, any of the Collateral
or its beneficial interest therein, and (ii) it will not create or permit to
exist any Lien or other adverse interest in or with respect to its beneficial
interest in any of the Collateral (except for the security interests granted
under this Escrow Agreement); and
(b) that it will not (i) enter into any agreement or understanding
that restricts or inhibits or purports to restrict or inhibit the Escrow
Agent's rights or remedies hereunder, including, without limitation, the
Escrow Agent's right to sell or otherwise dispose of the Collateral or
(ii) fail to pay or discharge any tax, assessment or levy of any nature with
respect to its beneficial interest in the Collateral not later than five days
prior to the date of any proposed sale under any judgment, writ or warrant of
attachment with respect to such beneficial interest.
(c) that, in the event the Underwriter shall decide to exercise
the right to purchase the Additional Preferred Securities pursuant to the
Underwriting Agreement, the Issuer shall use a portion of the proceeds from
such purchase by the Underwriter to purchase and deliver to the Escrow Agent
additional United States Treasury securities (the "Additional Pledged
Securities") in such amount as will be sufficient upon receipt of scheduled
interest and/or principal payments of all Pledged Securities thereafter held
in the Pledged Account to provide payment for the first thirteen cash
dividends due on the Preferred Securities. The Additional Pledged Securities
shall be pledged by the Issuer to the Escrow Agent for the benefit of the
Holders and shall be held by the Escrow Agent in the Pledged Account.
SECTION 8. POWER OF ATTORNEY. In addition to all of the powers
granted to the Escrow Agent pursuant to the LLC Agreement, the Issuer hereby
appoints and constitutes the Escrow Agent as the Issuer's attorney-in-fact
(with full power of substitution) to exercise to the fullest extent permitted
by law all of the following powers upon and at any time after the occurrence
and during the continuance of an Event of Default: (a) collection of proceeds
of any Collateral; (b) conveyance of any item of Collateral to any purchaser
thereof; (c) giving of any notices or recording of any Liens under Section 6
hereof; and (d) paying or discharging taxes or Liens levied or placed upon
the Collateral, with any such payments made by the Escrow Agent to become
part of the Obligations of the Issuer secured hereby. The Escrow Agent's
authority under this Section 8 shall include, without limitation, the
authority to endorse and negotiate any checks or instruments representing
proceeds of Collateral in the name of the Issuer, execute and give receipt
for any certificate of ownership or any document constituting Collateral,
transfer title to any item of Collateral, sign the Issuer's name on all
financing statements (to the extent permitted by applicable law) or any other
documents deemed necessary or appropriate by the Escrow Agent to preserve,
protect or perfect the security interest in the Collateral and to file the
same, prepare, file and sign the Issuer's name on any notice of Lien, and
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to take any other actions arising from or incident to the powers granted to
the Escrow Agent in this Escrow Agreement. This power of attorney is coupled
with an interest and is irrevocable by the Issuer.
SECTION 9. NO ASSUMPTION OF DUTIES; REASONABLE CARE. The rights and
powers granted to the Escrow Agent hereunder are being granted in order to
preserve and protect the security interest of the Escrow Agent and the
Holders of the Preferred Securities in and to the Collateral granted hereby
and shall not be interpreted to, and shall not impose any duties on the
Escrow Agent in connection therewith other than those expressly provided
herein or imposed under applicable law. Except as provided by applicable law
or by the LLC Agreement, the Escrow Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to
that which the Escrow Agent accords similar property held by the Escrow Agent
for similar accounts, it being understood that the Escrow Agent in its
capacity as such shall not have any responsibility for (a) ascertaining or
taking action with respect to calls, conversions, exchanges, maturities or
other matters relative to any Collateral, whether or not the Escrow Agent has
or is deemed to have knowledge of such matters, (b) taking any necessary
steps to preserve rights against any parties with respect to any Collateral
or (c) investing or reinvesting any of the Collateral or any loss on any
investment. The Escrow Agent may reasonably rely on any written notice from
the Issuer without any further investigation on its part. Furthermore, the
Escrow Agent assumes no responsibility for the validity of the Pledged
Securities nor the sufficiency of such Pledged Securities to cover the first
thirteen dividend payments on the Preferred Securities.
SECTION 10. INDEMNITY. The Issuer shall fully indemnify, hold
harmless and defend the Escrow Agent and its directors, officers, agents and
employees, from and against any and all claims, actions, obligations,
liabilities and expenses, including reasonable defense costs, reasonable
investigative fees and costs, and reasonable legal fees, expenses and damages
arising from the Escrow Agent's performance as Escrow Agent under this Escrow
Agreement, except to the extent that such claim, action, obligation,
liability or expense is directly attributable to the bad faith, gross
negligence or wilful misconduct of such indemnified Person. The obligations
of the Issuer under this Section 10 shall survive termination of this Escrow
Agreement.
SECTION 11. REMEDIES UPON EVENT OF DEFAULT. If any of the events
described in subsection (e) of this Section 11 (each, an "Event of Default")
shall have occurred and be continuing:
(a) The Escrow Agent and the Holders of the Preferred Securities
shall have, in addition to all other rights given by law or by this Escrow
Agreement or the LLC Agreement, all of the rights and remedies with respect
to the Collateral of a secured party under the UCC. In addition, with
respect to any Collateral that shall then be in or shall thereafter come into
the possession or custody of the Escrow Agent, the Escrow Agent may sell or
cause the same to be sold at any broker's board or at public or private sale,
in one or more sales or lots, at such price or prices as the Escrow Agent may
deem best, for cash or on credit or for future delivery, without assumption
of any credit risk. The purchaser of any or all Collateral so sold shall
thereafter hold the same absolutely, free
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from any claim, encumbrance or right of any kind whatsoever created by or
through the Issuer. The Escrow Agent will give the Issuer reasonable notice
of the time and place of any public sale thereof, or of the time after which
any private sale or other intended disposition is to be made. Any sale of
the Collateral conducted in conformity with reasonable commercial practices
of banks, insurance companies, commercial finance companies, or other
financial institutions disposing of property similar to the Collateral shall
be deemed to be commercially reasonable. Any requirements of reasonable
notice shall be met if such notice is mailed to the Issuer as provided in
Section 14.1 hereof at least ten (10) days before the time of the sale or
disposition, or in the case of Collateral consisting of Treasury Strips or
other marketable securities which, the Issuer acknowledge, are collateral of
a type sold on a recognized market, two (2) business days before the time of
such sale or disposition. The Escrow Agent or any Holder of Preferred
Securities may, in its own name or in the name of a designee or nominee, buy
any of the Collateral at any public sale and, if permitted by applicable law,
at any private sale. All expenses (including court costs and reasonable
attorneys' fees, expenses and disbursements) of, or incident to, the
enforcement of any of the provisions hereof shall be recoverable from the
proceeds of the sale or other disposition of the Collateral.
(b) All cash proceeds received by the Escrow Agent in respect of
any sale of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Escrow Agent, be held by the Escrow
Agent as collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Escrow Agent pursuant to Section 12) in
whole or in part by the Escrow Agent for the ratable benefit of the Holders
of the Preferred Securities against, all or any part of the Obligations in
the following order: FIRST, to the fees, costs and expenses incurred by the
Escrow Agent in connection with the maintenance of the Escrow Account and
performance of its duties hereunder; SECOND, pro rata to the Holders in
respect of any dividends on the Preferred Securities then due or past due;
and THIRD, to any other Obligations secured hereby, pro rata to the Holders.
Any surplus of such cash or cash proceeds held by the Escrow Agent and
remaining after payment in full of all the Obligations shall be paid over to
the Issuer or to whomsoever may be lawfully entitled to received such surplus.
(c) The Escrow Agent may, at any time or from time to time,
following written notice to the Issuer except in the case of dividend
payments then due and payable, set-off and otherwise apply all or any part of
the Obligations then due and payable against the Escrow Account or any part
thereof.
(d) The Issuer further agrees to use its reasonable best efforts
to do or cause to be done all such other acts as may be necessary to make
such sale or sales of all or any portion of the Collateral pursuant to this
Section 11 valid and binding and in compliance with any and all other
applicable requirements of law. The Issuer further agrees that a breach of
any of the covenants contained in this Section 11 will cause irreparable
injury to the Escrow Agent and the Holders of the Preferred Securities, that
the Escrow Agent and the Holders of the Preferred Securities have no adequate
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section 11 shall be specifically enforceable
against the Issuer, and the Issuer hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred.
(e) "Events of Default", wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(i) the occurrence of any condition or event, as a result
of which, the Escrow Agent no longer has sole dominion and control over, and
a perfected, first-priority security interest in, the Collateral; or
(ii) a default by the Issuer in the observance or
performance of any other covenant or agreement contained in this Escrow
Agreement, which default continues for a period of 45 days after the Issuer
receives written notice specifying the default (and requiring that such
default be remedied) from Holders of not less than 25% of the outstanding
Preferred Securities; or
(iii) CellNet or the Issuer (A) commences a voluntary case or
proceeding under Title 11 of the United States Code as amended and in effect
from time to time or any other bankruptcy, insolvency, receivership,
reorganization, moratorium, or other law providing relief to debtors
(collectively, "Bankruptcy Law"), with respect to itself, (B) consents to the
entry of a judgment, decree or order for relief against it in any involuntary
case or proceeding under any Bankruptcy Law, (C) consents to the appointment
of a custodian of it or for substantially all of its property, (D) consents
to or acquiesces in the institution of a bankruptcy or an insolvency
proceeding against it, (E) makes a general assignment for the benefit of its
creditors, or (F) takes any corporate action to authorize or effect any of
the foregoing; or
(iv) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of CellNet or the Issuer in an
involuntary case or proceeding under any Bankruptcy Law, which shall
(A) approve as properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of CellNet or the Issuer, (B) appoint a
custodian of CellNet or the Issuer or for substantially all of its property,
or (C) order the winding-up or liquidation of its affairs; and such judgment,
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(v) any person or entity shall commence judicial
proceedings to foreclose upon any of the Collateral or shall initiate any
action under applicable law to enforce rights against any of the Collateral.
SECTION 12. EXPENSES. The Issuer will within 60 days after receipt of
invoice thereof, pay to the Escrow Agent the amount of any and all reasonable
expenses, including, without limitation, the reasonable fees, expenses and
disbursements of its counsel, experts and agents retained by the Escrow Agent,
that the Escrow Agent may incur in connection with (a) the review, negotiation
and administration of this Escrow Agreement, (b) the custody or preservation of,
or the sale of, collection from, or other realization upon, any of the
Collateral, (c) the exercise or enforcement of any of the rights of the Escrow
Agent and the Holders of the Preferred Securities hereunder or (d) the failure
by the Issuer to perform or observe any of the provisions hereof.
SECTION 13. SECURITY INTEREST ABSOLUTE. All rights of the Escrow Agent
and the Holders of the Preferred Securities and security interests hereunder,
and all obligations of the Issuer hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Underwriting
Agreement or any other agreement or instrument relating thereto;
(b) any lack of validity or enforceability of the LLC Agreement or
any other agreement or instrument relating thereto;
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(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the LLC Agreement;
(d) any taking, exchange, surrender, release or non-perfection of
any Liens on any other collateral for all or any of the Obligations; or
(e) any manner of application of collateral, or proceeds thereof,
to all or any of the Obligations, or any manner of sale or other disposition
of any collateral for all or any of the Obligations or any other assets of
the Issuer;
(f) any change, restructuring or termination of the legal
structure or existence of the Issuer; or
(g) to the extent permitted by applicable law, any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the Issuer in respect of the Obligations or of this Escrow
Agreement.
SECTION 14. MISCELLANEOUS PROVISIONS.
Section 14.1. NOTICES. Any notice or communication given hereunder shall
be sufficiently given if in writing and delivered in person or mailed by first
class mail, commercial courier service or telecopier communication, addressed as
follows:
if to the Issuer:
CellNet Funding, LLC
000 Xxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Executive Vice President and Chief Financial Officer
with copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx
if to CellNet:
CellNet Data Systems, Inc.
000 Xxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx and Xxx X. Xxxx
with copy to:
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Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
if to the Escrow Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxx
with copy to:
Xxxxx, Xxxxxx and Xxxxxx
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Section 14.2. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This Escrow
Agreement may not be used to interpret another pledge, security or debt
agreement of the Issuer. No such pledge, security or debt agreement (other than
the LLC Agreement) may be used to interpret this Escrow Agreement.
Section 14.3. SEVERABILITY. The provisions of this Escrow Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Escrow Agreement in any jurisdiction.
Section 14.4. HEADINGS. The headings in this Escrow Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 14.5. COUNTERPART ORIGINALS. This Escrow Agreement may be signed
in two or more counterparts, each of which shall be deemed an original, but all
of which shall together constitute one and the same agreement.
Section 14.6. NO THIRD PARTY BENEFICIARIES. Nothing in this Escrow
Agreement, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder, and the Holders of the Preferred
Securities, any benefit or any legal or equitable right, remedy or claim under
this Escrow Agreement.
Section 14.7. AMENDMENTS, WAIVERS AND CONSENTS. Any amendment or waiver
of any provision of this Escrow Agreement and any consent to any departure by
the Issuer from any provision of this Escrow Agreement shall be effective only
if made or duly given in compliance with all of the terms and provisions of the
LLC Agreement, and neither the Escrow Agent nor any Holder of Preferred
Securities shall be deemed, by any act, delay, indulgence, omission or
otherwise, to have waived any right or remedy hereunder or to have acquiesced in
any Event of Default or in any breach of any of the terms and conditions hereof.
Failure of the Escrow Agent or any Holder of
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Preferred Securities to exercise, or delay in exercising, any right, power or
privilege hereunder shall not preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. A waiver by the
Escrow Agent or any Holder of Preferred Securities of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy that the Escrow Agent or such Holder of Preferred Securities would
otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
Section 14.8. INTERPRETATION OF AGREEMENT. To the extent a term or
provision of this Escrow Agreement conflicts with the LLC Agreement, the LLC
Agreement shall control with respect to the subject matter of such term or
provision; PROVIDED, that the duties of the Escrow Agent shall be contained
solely within this Escrow Agreement.
Section 14.9. CONTINUING SECURITY INTEREST; TERMINATION.
(a) This Escrow Agreement shall create a continuing security
interest in and to the Collateral and shall, unless otherwise provided in
this Escrow Agreement, remain in full force and effect until the payment in
full in cash of the Obligations. This Escrow Agreement shall be binding upon
the Issuer, its transferees, successors and assigns, and shall inure,
together with the rights and remedies of the Escrow Agent hereunder, to the
benefit of the Escrow Agent, the Holders of the Preferred Securities and
their respective successors, transferees and assigns.
(b) So long as no Event of Default shall have occurred and be
continuing, this Escrow Agreement (other than Issuer's obligations under
Sections 10 and 12) shall terminate upon the payment in full in cash of the
Obligations. At such time, the Escrow Agent shall, at the Issuer's written
request, reassign and redeliver to the Issuer all of the Collateral hereunder
that has not been sold, disposed of, retained or applied by the Escrow Agent
in accordance with the terms of this Escrow Agreement and the LLC Agreement
and take all actions requested by the Issuer to release the security interest
created by this Escrow Agreement in and to the Collateral, including the
execution and delivery of all termination statements necessary to terminate
any financing or continuation statements filed with respect to the
Collateral. Such reassignment and redelivery shall be without warranty by or
recourse to the Escrow Agent in its capacity as such, except as to the
absence of any Liens on the Collateral created by or arising through the
Escrow Agent, and shall be at the reasonable expense of the Issuer.
Section 14.10. SURVIVAL OF REPRESENTATIONS AND COVENANTS. All
representations, warranties and covenants of the Issuer contained herein
shall survive the execution and delivery of this Escrow Agreement, and shall
terminate only upon the termination of this Escrow Agreement.
Section 14.11. WAIVERS. The Issuer waives presentment and demand for
payment of any of the Obligations, protest and notice of dishonor or default
with respect to any of the Obligations, and
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all other notices to which the Issuer might otherwise be entitled, except as
otherwise expressly provided herein or in the LLC Agreement.
Section 14.12. AUTHORITY OF THE ESCROW AGENT.
(a) The Escrow Agent shall have and be entitled to exercise all
powers hereunder that are specifically granted to the Escrow Agent by the terms
hereof, together with such powers as are reasonably incident thereto. The
Escrow Agent may perform any of its duties hereunder or in connection with the
Collateral by or through agents or employees and shall be entitled to retain
counsel and to act in reliance upon the advice of counsel concerning all such
matters. Except as otherwise expressly provided in this Pledge Agreement or
the LLC Agreement, neither the Escrow Agent nor any director, officer, employee,
attorney or agent of the Escrow Agent shall be liable to the Issuer for any
action taken or omitted to be taken by the Escrow Agent, in its capacity as
Escrow Agent, hereunder, except for its own bad faith, gross negligence or
willful misconduct, and the Escrow Agent shall not be responsible for the
validity, effectiveness or sufficiency hereof or of any document or security
furnished pursuant hereto. The Escrow Agent and its directors, officers,
employees, attorneys and agents shall be entitled to rely on any communication,
instrument or document believed by it or them to be genuine and correct and to
have been signed or sent by the proper person or persons.
(b) The Issuer acknowledges that the rights and responsibilities
of the Escrow Agent under this Escrow Agreement with respect to any action
taken by the Escrow Agent or the exercise or non-exercise by the Escrow Agent
of any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Escrow Agreement shall, as between
the Escrow Agent and the Holders of the Preferred Securities, be governed by
the LLC Agreement and by such other agreements with respect thereto as may
exist from time to time among them, but, as between the Escrow Agent and the
Issuer, the Escrow Agent shall be conclusively presumed to be acting as agent
for the Holders of the Preferred Securities with full and valid authority so
to act or refrain from acting, and the Issuer shall not be obligated or
entitled to make any inquiry respecting such authority.
Section 14.13. RIGHTS OF HOLDERS OF THE PREFERRED SECURITIES. No Holder of
Preferred Securities shall have any independent rights hereunder other than
those rights granted to individual Holders of the Preferred Securities pursuant
to the LLC Agreement; provided that nothing in this subsection shall limit any
rights granted to the Escrow Agent under the Preferred Securities or the LLC
Agreement.
Section 14.14. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL; WAIVER OF DAMAGES.
(A) THIS ESCROW AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED UNDER
THE LAWS OF THE STATE OF NEW YORK. NOTWITHSTANDING THE FOREGOING: THE MATTERS
IDENTIFIED IN 31 C.F.R. PART 357, 61 FED. REG. 43626
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AUG. 23, 1996), INCLUDING REVISED ARTICLE 8, SHALL BE GOVERNED SOLELY BY THE
LAWS SPECIFIED THEREIN.
(B) THE ISSUER HAS APPOINTED CELLNET DATA SYSTEMS, INC., 000
XXXXXXXX XXXX, XXX XXXXXX, XX 00000 AS ITS AGENT FOR SERVICE OF PROCESS IN
ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS ESCROW AGREEMENT AND FOR
ACTIONS BROUGHT UNDER U.S. FEDERAL OR STATE SECURITIES LAWS BROUGHT IN ANY
FEDERAL OR STATE COURT LOCATED IN THE CITY OF NEW YORK AND AGREES TO SUBMIT
TO THE JURISDICTION OF ANY SUCH COURT.
(C) THE ISSUER AGREES THAT THE ESCROW AGENT SHALL, IN ITS CAPACITY AS
ESCROW AGENT OR IN THE NAME AND ON BEHALF OF ANY HOLDER OF PREFERRED SECURITIES,
HAVE THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST
THE ISSUER OR THE COLLATERAL IN A COURT IN ANY LOCATION REASONABLY SELECTED IN
GOOD FAITH (AND HAVING PERSONAL OR IN REM JURISDICTION OVER THE ISSUER OR THE
COLLATERAL, AS THE CASE MAY BE) TO ENABLE THE ESCROW AGENT TO REALIZE ON SUCH
COLLATERAL, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE ESCROW AGENT. THE ISSUER AGREES THAT IT WILL NOT ASSERT ANY COUNTERCLAIMS,
SETOFFS OR CROSSCLAIMS IN ANY PROCEEDING BROUGHT BY THE ESCROW AGENT TO REALIZE
ON SUCH PROPERTY OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE
ESCROW AGENT, EXCEPT FOR SUCH COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS WHICH, IF
NOT ASSERTED IN ANY SUCH PROCEEDING, COULD NOT OTHERWISE BE BROUGHT OR ASSERTED.
THE ISSUER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN
THE CITY OF NEW YORK ONCE THE ESCROW AGENT HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS PARAGRAPH INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS.
(D) THE ISSUER AGREES THAT NEITHER ANY HOLDER OF PREFERRED SECURITIES
NOR (EXCEPT AS OTHERWISE PROVIDED IN THIS ESCROW AGREEMENT OR THE LLC AGREEMENT)
THE ESCROW AGENT IN ITS CAPACITY AS ESCROW AGENT SHALL HAVE ANY LIABILITY TO THE
ISSUER (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY
THE ISSUER IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THE
TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS ESCROW
AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH,
UNLESS IT IS DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS
BINDING ON THE ESCROW AGENT OR SUCH HOLDER OF PREFERRED SECURITIES, AS THE CASE
MAY BE, THAT SUCH LOSSES WERE THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE
ESCROW AGENT
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OR SUCH HOLDERS OF PREFERRED SECURITIES, AS THE CASE MAY BE, CONSTITUTING BAD
FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(E) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ISSUER WAIVES THE
POSTING OF ANY BOND OTHERWISE REQUIRED OF THE ESCROW AGENT OR ANY HOLDER OF
PREFERRED SECURITIES IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO
ENFORCE ANY JUDGMENT OR OTHER COURT ORDER PERTAINING TO THIS ESCROW AGREEMENT OR
ANY RELATED AGREEMENT OR DOCUMENT ENTERED IN FAVOR OF THE ESCROW AGENT OR ANY
HOLDER OF PREFERRED SECURITIES, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY
RESTRAINING ORDER OR PRELIMINARY OR PERMANENT INJUNCTION, THIS ESCROW AGREEMENT
OR ANY RELATED AGREEMENT OR DOCUMENT BETWEEN THE ISSUER ON THE ONE HAND AND THE
ESCROW AGENT AND/OR THE HOLDERS OF THE PREFERRED SECURITIES ON THE OTHER HAND.
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IN WITNESS WHEREOF, the Issuer, CellNet and the Escrow Agent have each
caused this Escrow Agreement to be duly executed and delivered as of the date
first above written.
Issuer:
CELLNET FUNDING, LLC
By:
---------------------------------
CellNet Data Systems, Inc.,
Its: Manager
By:
--------------------------------
Name:
Title:
Escrow Agent:
BANK OF NEW YORK, as Escrow Agent
By:
-------------------------------
Name:
Title:
CELLNET:
CELLNET DATA SYSTEMS, INC.
By:
-------------------------------
Name:
Title:
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